JR/03565/2016
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The decision
IN THE UPPER TRIBUNAL
Give orally at Field House on 24 February 2017
JR/3565/2016
Field House,
Breams Buildings
London
EC4A 1WR
Heard on: 24 February 2017
Before
UPPER TRIBUNAL JUDGE peter lane
Between
The Queen
(on the application of)
an
Applicant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
- - - - - - - -
Mr G Dolan, instructed by Satha & Co Solicitors, appeared on behalf of the applicant.
Ms S Idelbi, instructed by the Government Legal Department appeared on behalf of the respondent.
- - - - - - - - - - - - -
JUDGMENT
- - - - - - - - - - - - -
JUDGE peter lane: This is an application for judicial review in order to challenge the respondent's decision of 15 February 2016 not to treat his submissions of 14 May 2015 as a fresh asylum or human rights claim. Permission to bring judicial review proceedings was granted by Upper Tribunal Judge Perkins on 12 July 2016.
2. The applicant's immigration history so far as relevant is as follows. The applicant was born in 1987 in Sri Lanka. On 23 March 2011, he arrived in the United Kingdom hidden in a container and claimed asylum on 12 April 2011. His case was that he had been compelled to join the LTTE and perform non-fighting tasks. He alleged that in February 2009 the Sri Lankan army attended the family home looking for his brother and as a result the applicant was taken into detention. He was eventually released with the assistance of a lawyer but was required to report. Finally, he was asked by the LTTE to transport for them a pistol and a walkie-talkie. He did this but was stopped by the army, arrested and, he says, tortured until he was released in December 2010.
3. The respondent did not believe the applicant's account and refused his claim. The First-tier Tribunal which on 7 September 2011 heard the applicant's appeal against that decision of the respondent also did not believe the applicant. In particular, the First-tier Tribunal did not consider the applicant's account was consistent and did not find his description of torture to be credible. Although the Tribunal accepted that two of the applicant's brothers had been granted asylum in France, the judge did not consider that this would have a bearing on risk to the applicant. The applicant eventually became appeal rights exhausted in respect of this matter in November 2011.
4. In 2012 further submissions were made by the applicant to the respondent.
5. In July 2013 the Upper Tribunal published its country guidance decision in GJ and Others [2013] UKUT 319. We will return to the significance of that country guidance decision in due course.
6. In July 2014, the respondent rejected submissions made on the applicant's behalf. There was no judicial review application brought in respect of that rejection. The submissions with which we are concerned were, as I have said, made on 14 May 2015. In them, the applicant contended that he had been involved in demonstrations in the United Kingdom in November 2010, December 2010 and May 2011. It is noteworthy that all of those occurred before his appeal hearing in the First-tier Tribunal. He also said that he attended demonstrations on unspecified dates in 2012 and 2013 for the LTTE Heroes' Day; and also attended a demonstration on 19 May 2013. The respondent refused to accept those submissions and that refusal has given rise to the present proceedings.
7. Before going further, it is necessary to note that the judge who granted permission on the papers did so on the mistaken basis that the impugned decision was considered by him to be a "certification" decision, by which is meant certification under section 94 of the Nationality, Immigration and Asylum Act 2002. In fact, it is common ground that this is not the position. What we are concerned with is a refusal to treat submissions as a fresh claim. As we know from the case law of the Court of Appeal, the standard to be applied in deciding the legality or otherwise of the respondent's decision under paragraph 353 is that of Wednesbury reasonableness or, put another way, rationality. However, that is subject to the important qualification which finds expression in WM (DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495 and other cases that the respondent must apply a degree of anxious scrutiny. An alleged failure to do that this forms the basis of the applicant's claim.
8. The submissions of 14 May 2015 are to be found beginning at page 91 of the trial bundle. They set out a number of materials that are enclosed with the submissions including "photographs, CD and a copy of envelopes". The letter ends by stating as follows: "We request that due consideration is given to the documentary evidence now available in light of the new aspect of our client's case".
9. At pages 93 onwards, we find the grounds for further representations. They are essentially to the effect that the applicant's sur place activities in the United Kingdom would place him at real risk of serious harm if returned, applying the country guidance contained in GJ. The submissions made no further mention of the CD referred to on page 91.
10. The respondent's decision proceeded as follows. It set out the materials which had been submitted on behalf of the applicant and to which I have made reference. It then referred expressly to the decision of the Tribunal in Devaseelan [2002] UKIAT 00702, which requires a decision maker to treat the findings of the adjudicator - in fact Immigration Judge - as the starting point for the respondent's analysis. References were then made in the letter to findings of the First-tier Tribunal, stating in effect what I have already summarised; that is to say, that there were credibility problems with the applicant's account and that the recognition by France of his brothers as refugees did not materially affect his own position.
11. The decision continued by noting that the applicant claimed to be actively involved in an organisation known as The British Tamils Forum. Pausing there, although that organisation was proscribed under United Kingdom law at the time of the decision, Mr Dolan helpfully informs me that it has subsequently lost its proscribed status. In any event, the decision letter examined the applicant's membership document, by reference to the country information guidance 2014. The decision maker considered that whilst the letter provided evidence that the applicant was a member of the BTF for a period of one year, it provided no evidence as to his role in the organisation. There was, in particular, nothing to suggest that he attended meetings or anything to indicate that his role within the group would be such as to bring him to the adverse interest of the current Sri Lankan Government. No weight was accordingly placed upon that letter.
12. Next, the decision considered certain photocopy documents and translations in support of the applicant's claim to have been previously detained in Sri Lanka. Here the decision maker considered that the material was not significantly different to previously submitted in connection with the applicant's claim. Sri Lankan birth certificates were untranslated and the copies were of poor quality. There was no explanation as to why these had come into the possession of the applicant. Overall, no weight was placed on these materials. In so finding, the respondent applied the starred case of Tanveer Ahmed UKIAT 00439.
13. The decision maker then looked at the issue of the photographs and CDs, of which there appears to have been two. The photographs did not provide in her view any evidence as to what the applicant's specific role was during the demonstrations, which were said to be shown in the photographs. There was no evidence as to why the demonstrations were organised nor was there any indication that the applicant was a high-profile active member. Overall, the decision maker considered that the applicant had failed to provide any evidence to suggest that the Sri Lankan authorities would be aware of his attendance at the demonstrations.
14. So far as the CDs were concerned, the decision maker said this:
"You have failed to provide any information about what is contained on them. You have also failed to provide any evidence of determining who and what is depicted and also how the contents of the CDs are of any relevance to your claim. Therefore no weight has been placed upon the CDs due to the fact that no explanation has been provided as to its contents or relevance to the submitted claim."
I will return to that passage in due course.
15. The decision maker looked at the issue of the applicant's sur place activity by reference to the guidance given in BA (demonstrations in Britain - risk on return) [2011] UKUT 36. Although concerned with Iran, that case contains important assistance for judicial and other decision makers in deciding the significance of attendance at demonstrations. Amongst other matters, it is relevant to have regard to the nature of the sur place activity, the identification risk, factors triggering inquiry or action on return, consequences of identification and identification risk on return.
16. As far as the present decision maker was concerned, she was troubled by the fact that the applicant had failed to provide evidence "of why you attend demonstrations". She also noted an absence of evidence as to how the Sri Lankan authorities would identify him engaging in sur place activity or that they were even aware of that activity. She concluded in all the circumstances that, applying the BA guidance, the sur place activity did not have any material bearing on the applicant's position.
17. She then looked at risk on return in the light of all these conclusions and by reference again to the case of GJ. In the light of her reasoning, she concluded that GJ provided no assistance to the applicant.
18. Finally, the decision maker turned to Article 8 issues and concluded that there was nothing of material significance in any submissions relating to those. I think it is right that no issue has been taken regarding that aspect of the decision. The overall conclusion, therefore, was that the submissions could not give rise to a fresh claim under paragraph 353.
19. Mr Dolan spoke to his skeleton argument which, notwithstanding its late filing, I earlier decided should be considered by the Tribunal in these proceedings. Mr Dolan submitted that it was an important matter that CD material had been submitted. It was when Mr Dolan became involved in the case that he formed the view that the CD issue, if I can call it that, was of potentially material significance. It was for that reason that those instructing him wrote on 14 February 2017 to ask whether the CD was watched by the decision maker. It seems to be common ground that only one CD is being relied upon by the applicant. Mr Dolan, however, acknowledges, as he had to, that there had been no prior request of the kind made on 14 February from the applicant to the respondent.
20. Ms Idelbi informed me that any response by the respondent to the request of 14 February is hampered by the fact that the person who took the decision is currently on maternity leave. However, she submitted that in any event the issue of the CD was not such, either alone or together with any other matter, to give rise to the quashing of the decision.
21. Mr Dolan described the CD as deriving from 2013/2014. He told me that the CD was some two and a half minutes long. He said it features the applicant attending in the United Kingdom a demonstration, which is said to be plainly hostile to the Sri Lankan Government. It then intercuts with images of the then Prime Minister, David Cameron and a senior advisor to the Sri Lankan Government. The CD is said to be a copy of a news report that featured on Agence France-Presse. It also contained captions. Later in the course of submissions, Ms Idelbi pointed out that some of the photographs in the bundle appear to be stills from that CD, since there is a news caption at the bottom on the pages
22. On the issue of the CD, Ms Idelbi pointed out that it was not included in the papers relating to these proceedings. That is so and as far as I am aware, the CD has not been filed with the Tribunal. She also pointed out, rightly, that the issue of the CD did not feature in the grounds of application submitted with the judicial review claim. In a sense, therefore, the CD issue is one which has not been pleaded.
23. I do not, however, consider that it is necessary to go so far as to take any pleading argument in order to deal with the CD issue. The submissions on 14 May 2015, as I have already mentioned, merely refer to a CD and ask that consideration be given to the documentary evidence. No description of what might be on the CD is contained in the pages of submissions and representations that follow. It is, in my view, quite wrong in those circumstances for the applicant to contend that there has been a failure of anxious scrutiny on the part of the respondent in not viewing a CD or, as it more properly ought to be described, a DVD. The pressures on decision makers working for the respondent are well-known. Although I take the point that several months elapsed between the making of the submissions by the applicant and the eventual decision, there is no indication that the matter was being worked on over any significant period of time by the respondent. A CD or DVD that is merely sent to the respondent, without any indication whatsoever as to what might be on it, is not a document that needs to be accessed by the decision maker, absent any independent indication as to what its contents source and/or significance might be. For one thing, the CD or DVD may be hours long. We know from Mr Dolan that the CD in question here lasts only two and a half minutes, but one would not know that unless one watched it. A CD of any length would need to be watched from beginning to end in order to determine whether anything of significance was on it. It is entirely unacceptable, in my view, for those making submissions on behalf of applicants seeking favourable decisions under paragraph 353 to proceed in the way in which the solicitors acting for the applicant proceeded. I therefore reject the submission of Mr Dolan that there is a failure of anxious scrutiny in relation to the CD.
24. I do so on the assumption that the CD was not viewed by the decision maker. For the reasons already given, the respondent's approach was entirely valid and certainly well within the realm of Wednesbury reasonableness. Even if that were not the case, I would have been inclined to refuse relief in this matter on the basis that the manner in which the CD issue was handled by the applicant's solicitors (not, I emphasise, Mr Dolan) is troubling. The issue was not mentioned in the grounds or subsequent stages, but only when Mr Dolan became involved in the case as recently as 14 February. There have been other procedural failings in this case relating, in particular, to the failure to serve a skeleton argument on time. For those reasons I would have considered very carefully whether to refuse relief. As it is however, for the reasons I have given, the challenge by reference to the CD fails in any event.
25. The general matter of the applicant's attendance at demonstrations, however, needs to be looked at in more detail. Leaving aside the CD/DVD, there is material that was before the Secretary of State in readily accessible form. The quality of the photographs, which begin at page 128 of the bundle, is, however, extremely poor. That was noted by the respondent in her letter and that issue has not got any better as these proceedings have continued. On page 128, we see the applicant wearing what is said to be LTTE clothing but, as I mentioned to Mr Dolan, it is difficult to ascertain from those photographs whether he is doing so in the context of a demonstration or other public gathering. That is significant, given that we are concerned with the issue of whether the Sri Lankan authorities, through their surveillance techniques, would be reasonably likely to have detected the applicant at demonstrations against their government in London and would be likely to take adverse action against him on return as a result thereof.
26. Although I am prepared to accept, notwithstanding their poor quality, that photographs of the applicant at demonstrations place him near a flag or other emblem of the LTTE and that he is to be seen in other images, none of that I consider goes to show that the respondent was wrong to reject the submissions as a fresh claim. The guidance in GJ in this respect is clear. At paragraph 336, the Tribunal said, "We do not consider that attendance at demonstrations in the Diaspora alone is sufficient to create a real risk or a reasonable degree of likelihood that a person would attract adverse attention on return to Sri Lanka".
27. The nub of the matter is whether the Sri Lankan authorities would perceive a returnee as posing a threat to the unitary Sri Lankan state. It is important to note that what we are concerned with is perception rather than actuality. I bear that point firmly in mind. But such material as we have and which the respondent was able to consider does no more than indicate that the applicant is someone who is engaged in demonstrations. The fact that those demonstrations bear the hallmarks of the LTTE is in itself not enough to give rise to even a reasonable likelihood of a judge allowing the applicant's appeal.
28. Much mention is made in GJ and has been made in the present proceedings of the sophisticated nature of the Sri Lankan authorities' surveillance techniques. That of course must be accepted. It is part of the country guidance in GJ. But the point cuts both ways. A sophisticated government operation to seek out people who in its view would de-stabilise the nation is very likely to differentiate between people who are merely attending demonstrations and engaging in other activities with the sole purpose of seeking to remain in the United Kingdom, and people who have a more prominent position, such for example as those who actually organise the demonstrations. These same concerns affect the membership of the now un-proscribed British Tamil Forum. The decision maker was quite entitled in my view to note that the applicant's membership document did no more than record the applicant's membership of the organisation, admittedly one with very different interests than those of the Sri Lankan Government. The membership document did not point to the applicant as having any significant role in the Forum.
29. That brings me to an important matter made in submissions by Ms Idelbi. She said it was striking that there were no materials in the submissions from others in the Diaspora, attesting to the applicant's prominent position. I agree. This is in my view a significant omission.
30. Finally, it is necessary to mention the following. The applicant has been well-served by Mr Dolan since he became seized of the case. I think Ms Idelbi was correct in stating that if submissions had been made with the benefit of Mr Dolan's input, the applicant's position might well have been different. However, I must approach the case by reference to what was put to the respondent in 2015; the way in which it was put; and the position as it was when the respondent took her decision. For the reasons I have given, I am fully satisfied that there is no illegality in the respondent's decision of 15 February 2016 and this application is therefore refused. ~~~~0~~~~
Give orally at Field House on 24 February 2017
JR/3565/2016
Field House,
Breams Buildings
London
EC4A 1WR
Heard on: 24 February 2017
Before
UPPER TRIBUNAL JUDGE peter lane
Between
The Queen
(on the application of)
an
Applicant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
- - - - - - - -
Mr G Dolan, instructed by Satha & Co Solicitors, appeared on behalf of the applicant.
Ms S Idelbi, instructed by the Government Legal Department appeared on behalf of the respondent.
- - - - - - - - - - - - -
JUDGMENT
- - - - - - - - - - - - -
JUDGE peter lane: This is an application for judicial review in order to challenge the respondent's decision of 15 February 2016 not to treat his submissions of 14 May 2015 as a fresh asylum or human rights claim. Permission to bring judicial review proceedings was granted by Upper Tribunal Judge Perkins on 12 July 2016.
2. The applicant's immigration history so far as relevant is as follows. The applicant was born in 1987 in Sri Lanka. On 23 March 2011, he arrived in the United Kingdom hidden in a container and claimed asylum on 12 April 2011. His case was that he had been compelled to join the LTTE and perform non-fighting tasks. He alleged that in February 2009 the Sri Lankan army attended the family home looking for his brother and as a result the applicant was taken into detention. He was eventually released with the assistance of a lawyer but was required to report. Finally, he was asked by the LTTE to transport for them a pistol and a walkie-talkie. He did this but was stopped by the army, arrested and, he says, tortured until he was released in December 2010.
3. The respondent did not believe the applicant's account and refused his claim. The First-tier Tribunal which on 7 September 2011 heard the applicant's appeal against that decision of the respondent also did not believe the applicant. In particular, the First-tier Tribunal did not consider the applicant's account was consistent and did not find his description of torture to be credible. Although the Tribunal accepted that two of the applicant's brothers had been granted asylum in France, the judge did not consider that this would have a bearing on risk to the applicant. The applicant eventually became appeal rights exhausted in respect of this matter in November 2011.
4. In 2012 further submissions were made by the applicant to the respondent.
5. In July 2013 the Upper Tribunal published its country guidance decision in GJ and Others [2013] UKUT 319. We will return to the significance of that country guidance decision in due course.
6. In July 2014, the respondent rejected submissions made on the applicant's behalf. There was no judicial review application brought in respect of that rejection. The submissions with which we are concerned were, as I have said, made on 14 May 2015. In them, the applicant contended that he had been involved in demonstrations in the United Kingdom in November 2010, December 2010 and May 2011. It is noteworthy that all of those occurred before his appeal hearing in the First-tier Tribunal. He also said that he attended demonstrations on unspecified dates in 2012 and 2013 for the LTTE Heroes' Day; and also attended a demonstration on 19 May 2013. The respondent refused to accept those submissions and that refusal has given rise to the present proceedings.
7. Before going further, it is necessary to note that the judge who granted permission on the papers did so on the mistaken basis that the impugned decision was considered by him to be a "certification" decision, by which is meant certification under section 94 of the Nationality, Immigration and Asylum Act 2002. In fact, it is common ground that this is not the position. What we are concerned with is a refusal to treat submissions as a fresh claim. As we know from the case law of the Court of Appeal, the standard to be applied in deciding the legality or otherwise of the respondent's decision under paragraph 353 is that of Wednesbury reasonableness or, put another way, rationality. However, that is subject to the important qualification which finds expression in WM (DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495 and other cases that the respondent must apply a degree of anxious scrutiny. An alleged failure to do that this forms the basis of the applicant's claim.
8. The submissions of 14 May 2015 are to be found beginning at page 91 of the trial bundle. They set out a number of materials that are enclosed with the submissions including "photographs, CD and a copy of envelopes". The letter ends by stating as follows: "We request that due consideration is given to the documentary evidence now available in light of the new aspect of our client's case".
9. At pages 93 onwards, we find the grounds for further representations. They are essentially to the effect that the applicant's sur place activities in the United Kingdom would place him at real risk of serious harm if returned, applying the country guidance contained in GJ. The submissions made no further mention of the CD referred to on page 91.
10. The respondent's decision proceeded as follows. It set out the materials which had been submitted on behalf of the applicant and to which I have made reference. It then referred expressly to the decision of the Tribunal in Devaseelan [2002] UKIAT 00702, which requires a decision maker to treat the findings of the adjudicator - in fact Immigration Judge - as the starting point for the respondent's analysis. References were then made in the letter to findings of the First-tier Tribunal, stating in effect what I have already summarised; that is to say, that there were credibility problems with the applicant's account and that the recognition by France of his brothers as refugees did not materially affect his own position.
11. The decision continued by noting that the applicant claimed to be actively involved in an organisation known as The British Tamils Forum. Pausing there, although that organisation was proscribed under United Kingdom law at the time of the decision, Mr Dolan helpfully informs me that it has subsequently lost its proscribed status. In any event, the decision letter examined the applicant's membership document, by reference to the country information guidance 2014. The decision maker considered that whilst the letter provided evidence that the applicant was a member of the BTF for a period of one year, it provided no evidence as to his role in the organisation. There was, in particular, nothing to suggest that he attended meetings or anything to indicate that his role within the group would be such as to bring him to the adverse interest of the current Sri Lankan Government. No weight was accordingly placed upon that letter.
12. Next, the decision considered certain photocopy documents and translations in support of the applicant's claim to have been previously detained in Sri Lanka. Here the decision maker considered that the material was not significantly different to previously submitted in connection with the applicant's claim. Sri Lankan birth certificates were untranslated and the copies were of poor quality. There was no explanation as to why these had come into the possession of the applicant. Overall, no weight was placed on these materials. In so finding, the respondent applied the starred case of Tanveer Ahmed UKIAT 00439.
13. The decision maker then looked at the issue of the photographs and CDs, of which there appears to have been two. The photographs did not provide in her view any evidence as to what the applicant's specific role was during the demonstrations, which were said to be shown in the photographs. There was no evidence as to why the demonstrations were organised nor was there any indication that the applicant was a high-profile active member. Overall, the decision maker considered that the applicant had failed to provide any evidence to suggest that the Sri Lankan authorities would be aware of his attendance at the demonstrations.
14. So far as the CDs were concerned, the decision maker said this:
"You have failed to provide any information about what is contained on them. You have also failed to provide any evidence of determining who and what is depicted and also how the contents of the CDs are of any relevance to your claim. Therefore no weight has been placed upon the CDs due to the fact that no explanation has been provided as to its contents or relevance to the submitted claim."
I will return to that passage in due course.
15. The decision maker looked at the issue of the applicant's sur place activity by reference to the guidance given in BA (demonstrations in Britain - risk on return) [2011] UKUT 36. Although concerned with Iran, that case contains important assistance for judicial and other decision makers in deciding the significance of attendance at demonstrations. Amongst other matters, it is relevant to have regard to the nature of the sur place activity, the identification risk, factors triggering inquiry or action on return, consequences of identification and identification risk on return.
16. As far as the present decision maker was concerned, she was troubled by the fact that the applicant had failed to provide evidence "of why you attend demonstrations". She also noted an absence of evidence as to how the Sri Lankan authorities would identify him engaging in sur place activity or that they were even aware of that activity. She concluded in all the circumstances that, applying the BA guidance, the sur place activity did not have any material bearing on the applicant's position.
17. She then looked at risk on return in the light of all these conclusions and by reference again to the case of GJ. In the light of her reasoning, she concluded that GJ provided no assistance to the applicant.
18. Finally, the decision maker turned to Article 8 issues and concluded that there was nothing of material significance in any submissions relating to those. I think it is right that no issue has been taken regarding that aspect of the decision. The overall conclusion, therefore, was that the submissions could not give rise to a fresh claim under paragraph 353.
19. Mr Dolan spoke to his skeleton argument which, notwithstanding its late filing, I earlier decided should be considered by the Tribunal in these proceedings. Mr Dolan submitted that it was an important matter that CD material had been submitted. It was when Mr Dolan became involved in the case that he formed the view that the CD issue, if I can call it that, was of potentially material significance. It was for that reason that those instructing him wrote on 14 February 2017 to ask whether the CD was watched by the decision maker. It seems to be common ground that only one CD is being relied upon by the applicant. Mr Dolan, however, acknowledges, as he had to, that there had been no prior request of the kind made on 14 February from the applicant to the respondent.
20. Ms Idelbi informed me that any response by the respondent to the request of 14 February is hampered by the fact that the person who took the decision is currently on maternity leave. However, she submitted that in any event the issue of the CD was not such, either alone or together with any other matter, to give rise to the quashing of the decision.
21. Mr Dolan described the CD as deriving from 2013/2014. He told me that the CD was some two and a half minutes long. He said it features the applicant attending in the United Kingdom a demonstration, which is said to be plainly hostile to the Sri Lankan Government. It then intercuts with images of the then Prime Minister, David Cameron and a senior advisor to the Sri Lankan Government. The CD is said to be a copy of a news report that featured on Agence France-Presse. It also contained captions. Later in the course of submissions, Ms Idelbi pointed out that some of the photographs in the bundle appear to be stills from that CD, since there is a news caption at the bottom on the pages
22. On the issue of the CD, Ms Idelbi pointed out that it was not included in the papers relating to these proceedings. That is so and as far as I am aware, the CD has not been filed with the Tribunal. She also pointed out, rightly, that the issue of the CD did not feature in the grounds of application submitted with the judicial review claim. In a sense, therefore, the CD issue is one which has not been pleaded.
23. I do not, however, consider that it is necessary to go so far as to take any pleading argument in order to deal with the CD issue. The submissions on 14 May 2015, as I have already mentioned, merely refer to a CD and ask that consideration be given to the documentary evidence. No description of what might be on the CD is contained in the pages of submissions and representations that follow. It is, in my view, quite wrong in those circumstances for the applicant to contend that there has been a failure of anxious scrutiny on the part of the respondent in not viewing a CD or, as it more properly ought to be described, a DVD. The pressures on decision makers working for the respondent are well-known. Although I take the point that several months elapsed between the making of the submissions by the applicant and the eventual decision, there is no indication that the matter was being worked on over any significant period of time by the respondent. A CD or DVD that is merely sent to the respondent, without any indication whatsoever as to what might be on it, is not a document that needs to be accessed by the decision maker, absent any independent indication as to what its contents source and/or significance might be. For one thing, the CD or DVD may be hours long. We know from Mr Dolan that the CD in question here lasts only two and a half minutes, but one would not know that unless one watched it. A CD of any length would need to be watched from beginning to end in order to determine whether anything of significance was on it. It is entirely unacceptable, in my view, for those making submissions on behalf of applicants seeking favourable decisions under paragraph 353 to proceed in the way in which the solicitors acting for the applicant proceeded. I therefore reject the submission of Mr Dolan that there is a failure of anxious scrutiny in relation to the CD.
24. I do so on the assumption that the CD was not viewed by the decision maker. For the reasons already given, the respondent's approach was entirely valid and certainly well within the realm of Wednesbury reasonableness. Even if that were not the case, I would have been inclined to refuse relief in this matter on the basis that the manner in which the CD issue was handled by the applicant's solicitors (not, I emphasise, Mr Dolan) is troubling. The issue was not mentioned in the grounds or subsequent stages, but only when Mr Dolan became involved in the case as recently as 14 February. There have been other procedural failings in this case relating, in particular, to the failure to serve a skeleton argument on time. For those reasons I would have considered very carefully whether to refuse relief. As it is however, for the reasons I have given, the challenge by reference to the CD fails in any event.
25. The general matter of the applicant's attendance at demonstrations, however, needs to be looked at in more detail. Leaving aside the CD/DVD, there is material that was before the Secretary of State in readily accessible form. The quality of the photographs, which begin at page 128 of the bundle, is, however, extremely poor. That was noted by the respondent in her letter and that issue has not got any better as these proceedings have continued. On page 128, we see the applicant wearing what is said to be LTTE clothing but, as I mentioned to Mr Dolan, it is difficult to ascertain from those photographs whether he is doing so in the context of a demonstration or other public gathering. That is significant, given that we are concerned with the issue of whether the Sri Lankan authorities, through their surveillance techniques, would be reasonably likely to have detected the applicant at demonstrations against their government in London and would be likely to take adverse action against him on return as a result thereof.
26. Although I am prepared to accept, notwithstanding their poor quality, that photographs of the applicant at demonstrations place him near a flag or other emblem of the LTTE and that he is to be seen in other images, none of that I consider goes to show that the respondent was wrong to reject the submissions as a fresh claim. The guidance in GJ in this respect is clear. At paragraph 336, the Tribunal said, "We do not consider that attendance at demonstrations in the Diaspora alone is sufficient to create a real risk or a reasonable degree of likelihood that a person would attract adverse attention on return to Sri Lanka".
27. The nub of the matter is whether the Sri Lankan authorities would perceive a returnee as posing a threat to the unitary Sri Lankan state. It is important to note that what we are concerned with is perception rather than actuality. I bear that point firmly in mind. But such material as we have and which the respondent was able to consider does no more than indicate that the applicant is someone who is engaged in demonstrations. The fact that those demonstrations bear the hallmarks of the LTTE is in itself not enough to give rise to even a reasonable likelihood of a judge allowing the applicant's appeal.
28. Much mention is made in GJ and has been made in the present proceedings of the sophisticated nature of the Sri Lankan authorities' surveillance techniques. That of course must be accepted. It is part of the country guidance in GJ. But the point cuts both ways. A sophisticated government operation to seek out people who in its view would de-stabilise the nation is very likely to differentiate between people who are merely attending demonstrations and engaging in other activities with the sole purpose of seeking to remain in the United Kingdom, and people who have a more prominent position, such for example as those who actually organise the demonstrations. These same concerns affect the membership of the now un-proscribed British Tamil Forum. The decision maker was quite entitled in my view to note that the applicant's membership document did no more than record the applicant's membership of the organisation, admittedly one with very different interests than those of the Sri Lankan Government. The membership document did not point to the applicant as having any significant role in the Forum.
29. That brings me to an important matter made in submissions by Ms Idelbi. She said it was striking that there were no materials in the submissions from others in the Diaspora, attesting to the applicant's prominent position. I agree. This is in my view a significant omission.
30. Finally, it is necessary to mention the following. The applicant has been well-served by Mr Dolan since he became seized of the case. I think Ms Idelbi was correct in stating that if submissions had been made with the benefit of Mr Dolan's input, the applicant's position might well have been different. However, I must approach the case by reference to what was put to the respondent in 2015; the way in which it was put; and the position as it was when the respondent took her decision. For the reasons I have given, I am fully satisfied that there is no illegality in the respondent's decision of 15 February 2016 and this application is therefore refused. ~~~~0~~~~